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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
REGENT LICENSEE OF ) Case No. 99090142
FLAGSTAFF, INC. ) NAL/Acct. No. X32080029
) Facility #51642
Licensee of Station KZGL(FM), ) JJS
Cottonwood, Arizona )
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: September 6, 2000 Released: September 7,
2000
By the Chief, Enforcement Bureau:
I. Introduction
1. In this Notice of Apparent Liability for Forfeiture, we
find Regent Licensee of Flagstaff, Inc. (``Regent''), licensee of
Station KZGL(FM), Cottonwood, Arizona, apparently liable for a
six thousand dollar ($6,000) forfeiture for an apparent violation
of 18 U.S.C. § 1464 and Section 73.3999 of the Commission's
rules, 47 C.F.R. § 73.3999, by broadcasting indecent material.
II. Background
2. The Commission received complaints concerning a
broadcast on KZGL(FM) on August 28, 1999. At issue was a remote
broadcast from Images Video, an adult video store in Flagstaff,
Arizona. According to the complainants, during this remote
broadcast, the station interviewed ``Mila Shegol, Queen of the
Nasty,'' an adult film actress. During the interview, Ms. Shegol
solicited listeners to come down to the station for free oral
sex. The complaints also stated that she said she liked to
``suck c-o-c-k'' and that anyone coming to the event could
``stick it in my a-s-s.'' According to one complaint, she
described herself as a ``healthy vessel for swallowing s-e-m-e-
n'' and described her ``tongueing techniques.''
3. By letter dated June 8, 2000, we requested Regent to
comment on the complaint. Regent filed its response on July 31,
2000. In its response, Regent admits that it conducted a remote
broadcast from the Images Video store on August 28, 1999 and that
``inappropriate'' material was aired during that broadcast.
Regent explains that Rowdy Walker, the station's Program
Director, Elizabeth Walker, a disc jockey (and Mr. Walker's
wife), and a salesman named Ryan conducted the remote broadcast.
The remote broadcast lasted from 5:00 p.m. to 8:00 p.m., and each
hour consisted of three live remote segments of approximately two
minutes in length. Regent states that during the remote
broadcast, at the request of the video store, the Walkers agreed
to interview Ms. Shegol on the air. Ms. Walker states that prior
to placing Ms. Shegol on the air, she told Ms. Shegol ``in
specific terms the sort of subject matter and language that
should be avoided.'' Ms. Walker reviewed a script from Ms.
Shegol's promoter that listed talking points such as the location
of the new store, a description of a charity fundraiser, and a
telephone number where Ms. Shegol's new video could be ordered.
At 7:33 p.m., Mr. Walker began the interview with Ms. Shegol.
The station used cell phones to conduct remote broadcasts, so Mr.
Walker called the station, and Brian Allen, who was the disc
jockey on duty, patched the call through on the air. Mr. Walker
introduced Ms. Shegol and then handed the cell phone to her.
According to Regent, at first, Ms. Shegol discussed the store and
her new video. Then, Ms. Shegol ``began to allude to sexual
topics.'' Mr. Walker states that he attempted to take the cell
phone from Ms. Shegol, but her ``promoter'' prevented him from
doing so. According to Mr. Allen, while he recognized that Ms.
Shegol was using ``sexual innuendo,'' he thought Mr. Walker, his
superior, had made the judgment to keep her on the air. Mr.
Allen states that when ``she uttered a sentence, in which she
explicitly and unmistakably referred to a sex act,'' he shut her
off the air. Mr. Walker estimates that the entire broadcast with
Ms. Shegol lasted two minutes, and that ``no more than 30
seconds'' elapsed from the time she ``got vulgar'' to the time
she was cut off.
4. Mr. Walker apologized on the air during the next remote
broadcast. Mr. and Ms. Walker also apologized on Monday morning
during their regular morning show. As a result of this incident,
Jay Mlazgar, KZGL(FM)'s General Manager, instituted a policy
that, except for station personnel, emergency workers, and
government officials, all conversations must be pre-recorded.
III. Discussion
5. Section 503(b)(1)(D) of the Act provides in pertinent
part:
Any person who is determined by the Commission, in
accordance with paragraph (3) or (4) of this
subsection, to have--- violated any provision of
section 1304, 1343, or 1464 of title 18, United States
Code; shall be liable to the United States for a
forfeiture penalty.
Pursuant to 47 U.S.C. §§ 312(a)(6) and 503(b)(1)(D), the
Commission has statutory authority to take appropriate
administrative action when licensees broadcast material in
violation of 18 U.S.C. § 1464, which provides criminal penalties
for anyone who "utters any obscene, indecent or profane language
by means of radio communication."
6. The Commission has defined indecency as language or
material that, in context, depicts or describes, in terms
patently offensive as measured by contemporary community
standards for the broadcast medium, sexual or excretory
activities or organs. Infinity Broadcasting Corporation of
Pennsylvania, 2 FCC Rcd 2705 (1987) (citing Pacifica Foundation,
56 FCC 2d 94, 98 (1975), aff'd sub nom. FCC v. Pacifica
Foundation, 438 U.S. 726 (1978). The United States Court of
Appeals for the District of Columbia Circuit has upheld the
Commission's authority to restrict the broadcast of indecent
material at times when there is a reasonable risk that children
may be in the audience. Action for Children's Television v. FCC,
852 F.2d 1332 (D.C. Cir. 1988). The court subsequently concluded
that a 10:00 p.m. to 6:00 a.m. "safe harbor" was justified as a
properly tailored means of vindicating the government's
compelling interest in the welfare of children. Action for
Children's Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995), cert.
denied, 116 S. Ct. 701 (1996).
7. Regent argues that it is unclear that there was a
violation because the Commission ``has never promulgated specific
indecency rules or even guidelines.'' In Citicasters Co.
(WXTB(FM)), 15 FCC Rcd 11906 (2000), the Commission rejected a
similar argument, noting that ``[t]he Commission's `definition of
indecency has remained unchanged for years, and in rulemaking
proceedings as well as in the context of specific rulings, we
have amply illustrated what broadcasters may and may not do.'''
See WQAM License Limited Partnership (WQAM(AM)), 15 FCC Rcd 2518,
2519 (2000). Moreover, Ms. Shegol's comments clearly appear to
be indecent because they contain language that describes sexual
and/or excretory activities or organs in patently offensive
terms. Because the material aired at around 7:30 p.m., when
there was a reasonable risk that children may have been in the
audience, it is legally actionable. Thus, it appears that on
August 28, 1999, Station KWGL(FM), violated 18 U.S.C. § 1464 by
airing indecent programming.
8. Section 503(b) of the Act, 47 U.S.C. § 503(b), and
Section 1.80(a) of the Commission's rules, 47 C.F.R. § 1.80(a),
both state that any person who willfully or repeatedly fails to
comply with the provisions of the Act or the rules shall be
liable for a forfeiture penalty. For purposes of Section 503(b)
of the Act, the term ``willful'' means that the violator knew it
was taking the action in question, irrespective of any intent to
violate the Commission's rules. See Southern California
Broadcasting Co., 6 FCC Rcd 4387 (1991).
9. The Commission's Forfeiture Policy Statement sets a
base forfeiture amount of $7,000 for transmission of
indecent/obscene materials.1 The Forfeiture Policy Statement
also specifies that the Commission shall adjust a forfeiture
based upon consideration of the factors enumerated in Section
503(b)(2)(D) of the Act, 47 U.S.C. § 503(B)(2)(D), such as ``the
nature, circumstances, extent and gravity of the violation, and,
with respect to the violator, the degree of culpability, any
history of prior offenses, ability to pay, and such other matters
as justice may require.'' See 12 FCC Rcd at 17110. In this
case, Regent argues that the broadcast was ``unintentional'' and
that Regent has a ``superb record of FCC compliance.'' While
Regent may not have intended to broadcast the material in
question, we believe that given the fact that the station was
interviewing an adult movie actress at an adult video store, it
failed to take adequate precautions to ensure that inappropriate
material was not aired. The station did not use a delay
mechanism, and it appears that some time passed between the time
Ms. Shegol started making explicit sexual references and the time
Mr. Allen finally cut her off. In light of the licensee's record
of compliance with the Commission's rules, however, we believe a
downward adjustment is appropriate. After reviewing all of the
circumstances, we believe a $6,000 forfeiture is appropriate in
this case.
IV. Ordering Clauses
10. ACCORDINGLY, IT IS ORDERED pursuant to Section 503(b)
of the Communications Act of 1934, as amended, and Sections
0.111, 0.311, and 1.80 of the Commission's rules,2 that Regent
Licensee of Flagstaff, Inc. is hereby NOTIFIED of its APPARENT
LIABILITY FOR FORFEITURE in the amount of six thousand dollars
($6,000) for willfully violating 18 U.S.C. § 1464 and Section
73.3999 of the Commission's rules.
11. IT IS
FURTHER ORDERED, pursuant to Section 1.80 of the Commission's
Rules, that within thirty days of the release of this Notice,
Regent SHALL PAY to the United States the full amount of the
proposed forfeiture or SHALL FILE a written statement seeking
reduction or cancellation of the proposed forfeiture.
12. Payment of the forfeiture may be made by mailing a
check or similar instrument, payable to the order of the Federal
Communications Commission, to the Forfeiture Collection Section,
Finance Branch, Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note the
NAL/Acct. No. referenced above.
13. The response, if any, must be mailed to Charles W.
Kelley, Chief, Investigations and Hearings Division, Enforcement
Bureau, Federal Communications Commission, 445 12th Street, S.W,
Room 3-B443, Washington DC 20554 and MUST INCLUDE the file number
listed above.
14. The Commission will not consider reducing or canceling
a forfeiture in response to a claim of inability to pay unless
the petitioner submits: (1) federal tax returns for the most
recent three-year period; (2) financial statements prepared
according to generally accepted accounting practices (``GAAP'');
or (3) some other reliable and objective documentation that
accurately reflects the petitioner's current financial status.
Any claim of inability to pay must specifically identify the
basis for the claim by reference to the financial documentation
submitted.
15. Requests for payment of the full amount of this Notice
of Apparent Liability under an installment plan should be sent
to: Chief, Credit and Debt Management Center, 445 12th Street,
S.W., Washington, D.C. 20554. See 47 C.F.R. § 1.1914.
16. IT IS FURTHER ORDERED that a copy of this Notice shall
be sent, by Certified Mail/Return Receipt Requested, to Regent's
counsel, Kevin Boyle, Esq., Latham & Watkins, 1001 Pennsylvania
Avenue, N.W., Washington, D.C. 20004-2505.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 The Commission's Forfeiture Policy Statement and Amendment of
Section 1.80 of the Commission's Rules, 12 FCC Rcd 17087, 17113
(1997) recon. denied, 15 FCC Rcd 303 (1999) (Forfeiture Policy
Statement).
2 47 C.F.R. § 0.111, 0.311 and 1.80.